Undue Process and the Paradox of Increasing Juridification

Since the publication of Malcolm Feeley’s 1979 classic, The Process is the Punishment, the idea that improved adjudicative processes necessarily lead to an increase in substantive justice has been questioned. In more recent work, Nasser Hussain, The Jurisprudence of Emergency (2003) has argued that colonial legality in particular, relied on rules and laws as a form of rule. Post colonial legal systems, like that of India, are notorious for the costs they impose on those participating in the system, primarily but not only litigants, in terms of fees, delays, the alien nature of legal norms, or the unwillingness of the executive to implement court orders which go against them. This burden falls disproportionately on the poor. 

Paradoxically, however, there is an increasing juridification of social and political issues, with a range of disadvantaged groups resorting to the courts, asking for some right or protesting against some violation. This paper explores this paradox of increasing juridification coupled with ongoing and perhaps increasing procedural injustice in the name of due process. Scholars of Indian law have argued that litigation is often conducted to aggravate rather than resolve issues, a transfer of a dispute to another sphere. But in the case of indigenous groups and others attempting to access the courts, knowing they will be harassed themselves, what ideas and expectations are at play? What does justice mean in this context, and is that even the objective?